In English v Richmond (City),  2021 BCCA 442, Justices Frankel and DeWitt-Van Oosten of the British Columbia Court of Appeal (the "BCCA") considered an appeal from an order requiring the issuance of a building permit for a cannabis greenhouse on land within the provincially regulated Agricultural Land Reserve ("ALR").

English highlights that the principles of statutory interpretation operate within a reasonableness review: although a court conducting a reasonableness review must show deference to administrative decision-makers, it retains a positive obligation to determine whether the decision-maker's interpretation respects the applicable legal constraints.1

Background

English concerned a dispute between Linda English and the City of Richmond (the "City"). In May 2019, Ms. English applied to the City for a building permit for a greenhouse to grow cannabis within the provincially regulated ALR. The greenhouse was to be built as a soil-based structure. As Ms. English's land was located within the ALR, the  Agricultural Land Commission Act, SBC 2002, c. 36 and its regulations applied.2

In September 2019, the City's Director of Building Approvals (the "Inspector") denied the application. He interpreted the regulations as containing a cut-off date after which a local government can prohibit the growing of cannabis in all structures, including those that are soil-based. Ms. English applied for a judicial review of the Inspector's decision.3

Regulatory Framework

Section 8 of the  Agricultural Land Reserve Use Regulation, B.C. Reg. 30/2019 (the "2019 Regulation")4 outlines instances in which local and First Nations governments may (and may not) prohibit cannabis production in the ALR. Under s. 8(1), the use of agricultural land for producing cannabis may not be prohibited if cannabis is produced (a) outdoors in a field, or (b) inside a structure that, subject to subsection (2), has a "base consisting entirely of soil". Section 8(2) precludes local governments from prohibiting cannabis production in the ALR if grown lawfully in a structure that was either constructed or under construction prior to July 13, 2018 and is unaltered since then.

The Chambers Judge's Decision

At the British Columbia Supreme Court, Mayer J. overturned the Inspector's decision. Although Mayer J. was unable to find the Inspector's interpretation was "obviously wrong",5 upon considering the 2019 Regulation's "context and purpose", he found there was a single reasonable interpretation: local governments may not prohibit the production of cannabis inside structures with a base consisting entirely of soil no matter when the structure was built—the July 13, 2018 cut-off date does not apply to soil-based structures.6 Accordingly, Mayer J. held the Inspector committed a reviewable error.7  

To arrive at this conclusion, Mayer J. relied on extrinsic evidence concerning the 2019 Regulation, including emails, government bulletins and other publicly available documents.8 Applying the framework set out in Canada (Minister of Citizenship and Immigration) v Vavilov,9 Mayer J. granted an order compelling the City to issue a building permit to Ms. English.10 The City then issued the permit, but later filed an appeal.

The Appeal Decision

The BCCA considered whether Mayer J. erred in finding the Inspector had not reasonably interpreted 2019 Regulation.

Standard of Review

While the correctness standard applied on the BCCA's review of Mayer J.'s review of the Inspector's decision,11 the Inspector's decision to refuse the permit was subject to a reasonableness standard of review.12 The BCCA summarized principles that apply under Vavilov. For example, for questions of statutory interpretation, reviewing courts should consider whether the decision-maker's interpretation is reasonable in light of the provision's words, the enactment's scheme and object, and legislative body's intention.13

Reasonableness of Inspector's Decision to Refuse the Permit 

The Inspector's interpretation of the 2019 Regulation was that s. 8 created only two categories of cannabis production on land within the ALR that may not be prohibited: (i) outdoors in fields; and (ii) in structures that were constructed or under construction before July 13, 2018.14 The Inspector did not explain how he arrived at this interpretation of s. 8.15

In accordance with Vavilov,16 the BCCA confirmed it was not enough to uphold the Inspector's decision merely because s. 8 of the 2019 Regulation could support the Inspector's interpretation—more is required.17 A reviewing court may intervene for unreasonableness when the decision-maker "fails entirely to consider a pertinent aspect of [a provision's] text, context or purpose."18 Although a reviewing court must not conduct a de novo interpretation,19 it "has a positive obligation to determine whether the interpretation adopted by the decision maker respects its relevant legal constraints."20 This process "does not preclude a reviewing court from conducting a preliminary analysis of the text, context and purpose of the contested legislation (including a regulation), to understand the 'lay of the land' before examining the decision maker's reasons and the outcome."21

(i) Admissibility of Extrinsic Material

The BCCA confirmed there are circumstances where a court may look beyond the material before the decision-maker to perform its reasonableness review, including (but not limited to) the use of extrinsic aids.22 Admitting extrinsic aids is a principled exception to the rule that a reviewing court is restricted to materials before the decision-maker.23 

In English, Mayer J. had admitted the following extrinsic evidence in interpreting the 2019 Regulation: (1) an information bulletin released by the Agricultural Land Commission (the "ALC"); (2) a Ministry of Agriculture press release; (3) correspondence involving the Deputy Minister of Agriculture; and (4) correspondence between the ALC and the City's Planning and Development Division.24 The BCCA found Mayer J. did not err in admitting these items of evidence, viewing them as "administrative interpretation" aids:25

  • The publicly available information bulletin offered "guidance to assist in interpreting the [ALCA] ... and regulations in relation to cannabis production in the ALR".26
  • The press release outlined recent changes to ALR regulations, including clarifying circumstances where cannabis could be lawfully grown in the ALR such as "in a structure that has a soil base" and "in a structure that was either fully constructed or under construction ... prior to July 13, 2018".27
  • Ministry of Agriculture correspondence stipulated the 2019 Regulation "did not represent a shift in government policy".28

(ii) Reasonableness of the Inspector's Interpretation

Although the BCCA acknowledged that s. 8 of the 2019 Regulation was unclear,29 it agreed with Mayer J. that the Inspector's interpretation was unreasonable.30 The BCCA highlighted clarifying language in s. 8:

[110] Incorporating the words "subject to subsection (2)" in s. 8(1)(b) qualifies the application of that section. Read as a whole, s. 8(1) stipulates that "[t]he use of agricultural land for producing cannabis lawfully may not be prohibited ... if the cannabis is produced (a) outdoors in a field, or (b) inside a structure that, subject to [the legacy clause], has a base consisting entirely of soil." The logical effect of the manner in which s. 8(1)(b) has been configured in the 2019 Regulation is to preserve, within that provision, the s. 8(2) time‑limited protection afforded to structures other than those with a "base consisting entirely of soil".31

Further, the Inspector's interpretation of s. 8(1)(b) ignored the importance of the wording "subject to subsection (2)".32 Specifically, the words "subject to" qualified the provision's application by carving out, as an exception, the non-soil‑based structures allowed for in s. 8(2). The words ensured the legacy clause as it applied to non-soil‑based structures was not undermined by the narrower scope of s. 8(1)(b).33

The BCCA also noted that the Inspector's interpretation failed to accord with the implied exclusion rule, a maxim (i.e., expressio unius est exclusio alterius)34 holding that "if something is not mentioned in circumstances where one would expect it to be mentioned, it is excluded by implication."35 If the legislature intended to bar local governments from prohibiting use of agricultural lands for cannabis production only that occurs "outdoors in a field", it would have stated so.36 The BCCA upheld Mayer J.'s decision to set aside the permit refusal.37

(iii) The Appropriate Remedy

However, the BCCA held that Mayer J. erred in declining to remit the matter for reconsideration and instead granting an order for mandamus obligating the City to issue the permit.38 Before a permit could be issued, a building inspector must determine whether the proposed greenhouse is a "soil-based structure" within the 2019 Regulation's meaning.39 This entails a technical assessment of building plans, which the court lacks the necessary expertise to conduct.40 The BCCA remitted Ms. English's permit application to the City for further consideration.

Key Takeaways

  • For parties applying for building permits to produce cannabis in the ALR (like Ms. English), English  confirms that s. 8(1)(b) of the 2019 Regulation precludes local governments from prohibiting the production of cannabis inside structures with a base consisting entirely of soil (regardless of when the structure is built).
  • English reminds parties of the reviewing court's obligations when completing a reasonableness review. Although the court must not measure the decision-maker's interpretation against one it would have reached, it must determine whether the decision-maker's interpretation respected applicable legal constraints. This involves examining the governing statutory scheme and applying interpretative principles.
  • A reviewing court may look beyond the materials before the decision-maker to perform its reasonableness review, including where such materials are used as extrinsic aids. Extrinsic aids can clarify the purpose of the provision at issue.
  • A reviewing court will be inclined to remit a matter for reconsideration (rather than issue an order itself) where there is a technical aspect to the assessment that the court lacks the expertise to perform.
  • Separately, Ms. English had argued that since the City issued the building permit, there was no longer a live dispute. The BCCA declined to dismiss the appeal as moot on the basis that if it determined Mayer J. erred in finding the Inspector's interpretation unreasonable, the City would still be entitled to revoke the permit.

Case Information

English v Richmond (City), 2021 BCCA 442

Docket: CA47143

Date of Decision: November 24, 2021

Footnotes

1 English v Richmond (City),  2021 BCCA 442 at para 66 [English]

2 English at paras 1-2.

3 English at paras 2-3.

4 Agricultural Land Reserve Use Regulation, B.C. Reg. 30/2019, s 8 (emphasis added).

5 English v Richmond (City),  2020 BCSC 1642 at para 95.

6 English v Richmond (City),  2020 BCSC 1642 at para 105.

7 English v Richmond (City),  2020 BCSC 1642 at para 107.

8 English v Richmond (City),  2020 BCSC 1642 at paras 100-103.

9 Canada (Minister of Citizenship and Immigration) v Vavilov,  2019 SCC 65 [Vavilov].

10 English v Richmond (City),  2020 BCSC 1642 at para 144.

11 English at para 55.

12 English v Richmond (City),  2020 BCSC 1642 at para 61. English at para 56.

13 Yu at para 55 (emphasis added).

14 English at para 57.

15 English at para 58.

16 Vavilov at para 106,108.

17 English at para 68.

18 Vavilov at para 122.

19 Vavilov at para 116.

20 English at para 66.

21 English at para 66.

22 English at para 77.

23 English at para 87.

24 English at para 95.

25 English at paras 99-100.

26 English at para 96.

27 English at para 97.

28 English at para 98.

29 English at para 105.

30 English at para 104.

31 English at para 110.

32 English at para 112.

33 English at para 113.

34 English at para 116.

35 Ruth Sullivan, "Statutory Interpretation in a New Nutshell" (Canadian Bar Review: May 2003) at 60, available at: https://cbr.cba.org/index.php/cbr/article/view/3963/3956.

36 English at para 116.

37 English at para 122.

38 English at para 126.

39 English at paras 128, 130.

40 English at para 137.

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